Tuesday, August 25, 2009

CIA Director Leon E. Panetta argued within the Obama administration that it should not reopen cases of suspected torture by CIA officers but lost the argument to Attorney General Eric H. Holder Jr., former and current intelligence officials said Monday.

The officials, who asked not to be named because they were discussing internal deliberations, spoke as the administration released to the public a 2004 report by the spy agency’s inspector general that detailed abuses and the top Republican on the Senate Select Committee on Intelligence accused Mr. Holder of violating a promise not to go after CIA employees for past actions.

The Justice Department also announced the appointment of a special prosecutor to do a preliminary investigation of these abuses and of a new interagency panel - overseen by the National Security Council and housed in the FBI - to supervise interrogations of high-value detainees going forward.

Mr. Holder said in a statement that the Justice Department would “not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the [department’s] Office of Legal Counsel regarding the interrogation of detainees.”

However, in a memo to CIA employees Monday that was shared with the press, Mr. Panetta hinted at his disagreement with the administration’s decisions, which some analysts and members of Congress have said could further demoralize the agency and chill future intelligence collection from terrorist suspects.

He wrote that “career prosecutors have [already] examined” the 2004 findings. He added, “They worked carefully and thoroughly, sometimes taking years to decide if prosecution was warranted or not.”

“My primary interest - when it comes to a program that no longer exists - is to stand up for those officers who did what their country asked and who followed the legal guidance they were given,” Mr. Panetta wrote.

Sen. Christopher S. Bond, Missouri Republican and vice chairman of the Senate intelligence committee, criticized the administration decisions and said that Mr. Holder went back on a promise not to prosecute CIA officers made in private conversation before the Senate voted to confirm him.

“I think Holder has certainly not honored the statements he made to me and other senators during the confirmation process. I supported him because I understood he would not do this,” Mr. Bond said.

A former senior U.S. intelligence official told The Washington Times that the decision raised the prospect of double jeopardy for the individuals cited in the Inspector General’s report. The names of the interrogators were not released to the public.

“All the significant cases were referred to the Department of Justice [under the George W. Bush administration] and career prosecutors decided not to indict them,” said the official, who spoke on the condition of anonymity.

“Many were disciplined, reprimanded [or] … their careers severely damaged or ended. … Now this administration comes along and says they are going to look at it again.”

Mr. Panetta wrote that the CIA had been “aggressive over the years in seeking new opinions from the Department of Justice as the legal landscape changed. The Agency sought and received multiple written assurances that its methods were lawful. The CIA has a strong record in terms of following legal guidance and informing the Department of Justice of potentially illegal conduct.”

With the agency sidelined in some respects from the interrogation process and its officers facing potential prosecution, the Obama administration has left open the option of relying on foreign intelligence agencies. A special task force Monday recommended continuing the practice of rendition - capturing terrorist suspects and sending them to foreign jails.

The Obama administration said, however, that it will seek diplomatic assurances from the host governments and send monitors to the jails to ensure that such suspects are not tortured.

Several human rights groups said that President Obama should have prohibited any such transfers to countries, such as Egypt or Pakistan, that are known to torture prisoners.

“We among others pushed for a blanket ban on rendition to countries that are known to engage in torture,” said Gabor Rona, international legal director for Human Rights First.

“The State Department issues reports every year that includes … countries that engage in torture. Our position is that there is no amount of diplomatic assurances that are adequate to prevent torture when the transfer is to a country that is known to engage in torture. If you can’t trust a country to not torture, then you can’t trust a country to assure they will not torture.”

Proponents of the new policy said, however, that the administration is abiding by U.N. treaties that forbid both torture and rendition of suspects to places where they might be abused.

Former CIA general counsel Jeffrey Smith said, “In general I think on a country by country basis if you can obtain diplomatic assurances from that country and then have the ability to visit the prisoner, it will go a long way towards meeting our international legal obligations.”

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